# International & G. N. Ry. Co. v. Anderson County > Court of Appeals of Texas · January 22, 1915 · 174 S.W. 305 URL: https://www.frixlaw.com/law-library/cases/3929746 ## Case - **Full name:** International G. N. Ry. Co. v. Anderson County [Fn&8224] - **Court:** Court of Appeals of Texas - **Decided:** January 22, 1915 - **Citations:** 174 S.W. 305; 1915 Tex. App. LEXIS 188 - **Precedential status:** Published - **Opinion:** Addendum - **Judges:** Levy - **Cited by:** 18 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3929746 ## Opinion text The pertinent provision of the Constitution reads: "No judge shall sit in any case wherein he may be interested, or where either of the parties may be connected with him, either by affinity or consanguinity, within such a degree as may be prescribed by law, or when he shall have been counsel in the case." Article 5, § 11. The disqualifying relationship is fixed by law to the third degree. Article 1584, R.S. The constitutional provision very clearly expresses that such relative must be one of the parties to the cause to render the judge incompetent. And the rule laid down as a test of when a person is a party to the suit, within the meaning and spirit of this provision of disqualification to the judge, comprehends a person named in the pleading or a person so directly affected by the judgment in the particular case as in legal effect to be a party to the suit. This is the rule applied by the Supreme Court in the cases discussed. In Hodde v. Susan, 58 Tex. 392 , a surety on a claimant's bond was held to be a party to the statutory proceeding to try the right of property, upon the ground that in legal effect the surety on the bond was an active party to the suit. "The sureties," it was observed, "have a right to protect their interests by interposing a defense to the suit, taking such control over its proceedings as will prevent loss to them by neglect or inattention, and finally of appealing to a higher court, if in their opinion an erroneous judgment has subjected them to loss or damage. Here, then, we have all the characteristics of a party to a suit combined in such surety." In Burch v. Watts, 37 Tex. 135 , a surety on an attachment bond was in legal effect such a party to the record as entitled him to move to quash it. In Weir v. Brooks, 17 Tex. 638 , a surety on the bond of a defendant in a distress warrant suit was in legal effect such a party to the suit as allowed him to take a writ of error to the Supreme Court. In Schultze v. McLeary, 73 Tex. 92 , 11 S.W. 924 , Orynski was a party defendant to the record, and his wife and the wife of the regular judge were sisters. The court held the judge disqualified upon the ground that the wife of Orynski was in legal effect an active party defendant to the suit and directly affected by the judgment. To the same effect is Jordan v. Moore, 65 Tex. 363 . The court in Simpson v. Brotherton, 62 Tex. 170 , clearly explains the legal reason for the holding, as in these two cases above, that the wife is in legal effect a party to the suit. It is stated: "Our courts treat the relation of husband and wife towards the community property as that of a partnership. The business of the firm is transacted in the name of the husband, and he prosecutes and defends its suits with the same effect as if his partner were named in the case. Judgments in such suits bind both partners, or inure to their joint benefit if in their favor. In fact the wife is as much a party as if the record recited that the husband instituted or defended the suit for the use and benefit of himself and wife." In Jordan v. Moore, supra, it was stated: "His wife was not nominally a party to the action, but she was so in legal effect." All these cases apply and follow the definition of *Page 328 a party to an action as given in 1 Greenleaf on Evidence, § 535. In the case of Winston v. Marsterson, 87 Tex. 200 , 27 S.W. 768 , the Supreme Court again construed the word "parties," as used, as extending only to parties to the suit, named in the record or so in legal effect, and not including other persons "on account of some interest in the litigation." This decision is in harmony with the other cases and the general rule laid down by Greenleaf. If the word "parties" may extend to those named in the record or so in legal effect, the converse of the rule is that other persons are not parties merely "on account of some interest in the litigation." In other words, it is meant to say, as applied to the facts of that case, that "parties," as used, extends to the actual parties to the cause, named in the record or so in legal effect, but not to those who in the law of estoppel become privies to another and merely are affected by the judgment as regards the subject adjudicated. In the case of Duncan v. Herder, 57 Tex. Civ. App. 542 , 122 S.W. 904 , the daughter-in-law of the judge was the daughter of a defendant, who was made a party to the record in her capacity as survivor of her deceased husband and administrator of community estate of herself and her deceased husband. The suit was to cancel a judgment in favor of such survivor and administrator for debt and foreclosure of a lien on real estate. The court held that the daughter-in-law, "Mrs. Moore, was a party to the suit within the meaning of that term as used in the Constitution," and that the judge was disqualified. Clearly, in the facts of that case, Mrs. Moore had a joint interest in the land and was actually represented in the suit by the administrator or legal trustee. The daughter-in-law, through the representation of the administrator or legal trustee, was directly affected by the judgment in regard to her property, and she and the administrator had in a sense a legal identity concerning the same community land in suit. The ruling in the facts of the case cannot reasonably be disapproved. It is not thought that this ruling overturns the rule applied in the Marsterson Case, supra, or conflicts with the rule applied in the other cases, when the facts are considered. And it is not thought that this case can be said to have construed the provision of law in hand as extending generally to all persons who may, in the law of estoppel, become privy to another and become affected by the judgment. In the instant proceedings the relatives of the judges are not named in the record, and on the facts would not be parties in legal effect unless the allegations of the named citizens in the petition who "sue in behalf of themselves and of all other citizens of said city of Palestine" make the unnamed persons parties to the suit within the meaning of the constitutional provision. In the case of Cemetery v. Drew, 13 Tex. Civ. App. 536 , 36 S.W. 802 , the court stated: "A petition or bill filed in the interest of a party and all persons similarly situated does not make the persons similarly situated parties to the suit." When the question is one of common or general interest it is a rule of equity procedure, in the interest of convenience, that one or more persons might sue for all having a possible interest. The unnamed persons, though, are merely inchoate, and not active parties to the suit. Until the inchoate parties come into the record they have no control of the action, cannot appeal, and are not personally liable for costs, and therefore have none of the characteristics of a party to a suit. The judge may ascertain from the pleadings in the cause who are the parties to it, or in legal effect active parties to it, but he may not know what unnamed and merely inchoate parties may be interested, or possibly interested, or whether any such class of persons be related to him. And yet the validity of the judge's action must depend upon such a question if unnamed and merely inchoate parties are to be deemed parties to the suit within the letter and spirit of the constitutional article. It is thought that unless the unnamed parties come into the record, which they did not here, the allegations "in behalf of all other citizens" could be disregarded. The rule applied in Winston v. Marsterson is sound in interpretation and is applicable to the instant suit. The application of a different interpretation to the character of suit here would, it is believed, extend the disqualifying provision beyond its letter and spirit so as to cast uncertainty upon all rights acquired under judicial proceedings and make it almost impossible to carry on the administration of justice. In Hovey v. Shepherd, 105 Tex. 237 , 147 S.W. 224 , the suit reviewed directly interfered with the execution of a final judgment in another suit, and the parties were prohibited from so doing upon the ground that the matters adjudicated in the original suit were purely in the interest of the public, and the unnamed persons or class were bound by such adjudication. The court stated: "If the interveners could litigate the issue, then, if defeated, any other citizen of the city could secure an injunction with as much justice and right as the injunction now threatened could be issued, and this might be followed up by each citizen, for interveners had no right superior to any other." And this decision is clearly in line with principle and precedent. It is firmly predicated upon the principle that in the subjectmatter litigated, affecting the interest of the public alike, the judgment thereon declared the rights and liabilities of the railway company to the various members of the public interested, and the members of the public were concluded thereby, though not parties to the record. In the law of estoppel they were privies as regards the subject-matter *Page 329 litigated. The distinction between being a party to a suit, named in the record, or so in legal effect, as directly affected by the judgment, and not a nominal party, though being bound by the judgment, is of marked and material importance in a case of this character and purpose. A suit of this character and purpose is treated as one of general interest to the various members of the public interested, involving the same questions of law and fact; and as a means of convenient judicial test of this general interest, it is permitted to some, but not required of all the public similarly interested, to join as plaintiffs. The judgment declares the rights and liabilities of the defendant in respect to that general interest of the public in the matter litigated, and the defendant is entitled to have the judgment enforced finally and without interruption against the public interested. It is just to preclude or estop the unnamed public from interference with the final enforcement of the judgment in the cause instituted for the benefit of the public interested. They are in a sense privies, so that whatever binds one in relation to the subject of their general interest binds the others also. The ground of privity is not personal relation to the suit, but mutual relationship as regards the subject litigated, operating as estoppel. It is not doubted that a person, though not named as a party to the suit, may, in a particular case by estoppel, be concluded in his claim to property by a final judgment. The same reason and principle concluding a person by a judgment because of privity does not obtain to persuade the holding that unnamed or inchoate parties merely to a suit, who have not come into the record as active parties, would be such parties to the suit as to disqualify a judge from acting in the cause in a case of the instant character. It is thought that it is not enough in the instant suit to render a judge incompetent under terms of the law that he is related to some unnamed or inchoate party merely who may be affected by the judgment. As before said, a different construction would extend the provision of law beyond its letter and spirit so as to cast uncertainty upon all rights acquired under judicial proceedings. The question is approached with some delicacy by the court, but here determined as we believe the law requires. It is decided that the two judges referred to are not legally disqualified. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3929746. Public record. Not legal advice.